Com. v. Rodriguez
| Decision Date | 29 August 2005 |
| Citation | 833 N.E.2d 134,445 Mass. 1003 |
| Parties | COMMONWEALTH v. Jorge RODRIGUEZ, Sr. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
RESCRIPT.
Four police officers responded to a 911 call for a domestic disturbance at the defendant's residence. On arriving at the scene, two officers interviewed the defendant outside the home and the other two entered the home to speak to the parties inside.
The defendant stated he had encountered his son out walking without a jacket despite the winter weather, with a female friend, at a time when he was supposed to be home. The defendant pulled over his car, told his son to get in, and drove home. The defendant stated that he was angry and when they got home he did "slap his son a couple of times." That was the extent of the incident as he related it.
The son and the defendant's eighteen year old daughter were among those present in the home. The daughter was the person who had telephoned 911. The police officers observed their demeanor and examined the son for injuries. With the exception of a red mark between one and two inches in diameter on his lower back, the son had no marks, bruises, abrasions, swelling, or other injuries apparent at the time. The daughter and son both offered extensive details regarding the assault, including allegations that the defendant's actions went well beyond a couple of "slaps."
The son and daughter did not testify at trial for reasons unclear on the record before us. Neither were they available for pretrial cross-examination. The Commonwealth presented evidence exclusively through the testimony of two of the four responding officers. The large majority of the testimony involved the officers' recounting of the statements made to them by the son and daughter, which the judge had ruled admissible under the spontaneous utterances exception to the hearsay rule. The defendant properly preserved his objection to the admissibility of these statements, specifically citing the confrontation clause of the Sixth Amendment of the United States Constitution. The defendant was convicted of assault and battery and timely filed this appeal. We transferred the case to this court on our own motion.
Commonwealth v. Gonsalves, 445 Mass. 1, 9, 13, ___ N.E.2d ___ (2005), sets out the method to determine whether an out-of-court statement offered without benefit of confrontation is testimonial in nature and therefore subject to Sixth Amendment proscriptions. On these facts, we need only determine whether the statements were made in response to police interrogation, as that would make them per se testimonial. The son and daughter's statements were made in response to police questioning at a secure scene. The son had no apparent...
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